ATTACHMENT “B” Custody and Access Issues in Hague Abduction Convention Partner Countries Introduction As technology has improved and international travel has increased, more and more families have become “international.” Many children have parents of differing nationalities or cultural backgrounds. Other children move from one country to another with their parents as work, education or other reasons dictate. This increased mobility and international contact has also led to a growing number of families with international custody problems as parents go their separate ways. The Department recognizes the frustration and difficulties that many U.S. parents face as they struggle to maintain solid, meaningful relationships with their children across borders, oceans, and sometimes even language barriers. Even in the best of circumstances, maintaining a close relationship can be difficult when sheer physical distance is the only barrier to contact between a parent and child. Unfortunately, in too many instances, parents face additional and unexpected barriers to contact with children living in another country. While these barriers may prove most daunting in some countries that are not U.S. partners under the 1980 Hague Convention on the Civil Aspects of International Child Abduction, there is no doubt that even in Convention partner countries, a U.S. parent can have difficulty obtaining custody or access rights and exercising those rights. The Department of State acts on many levels to assist left-behind parents to obtain and exercise access rights: in multilateral fora, in bilateral discussions with high-level government officials, in the day to day working level contacts with central authorities, law enforcement and child welfare officials, and with taking parents. Services Available to U.S. Parents The Department and our consular officers in U.S. embassies and consulates around the globe speak with many U.S. parents who turn to the U.S. government for information and assistance when their custody and access rights are in jeopardy. We work to assist these parents in many ways. For parents who are considering whether to file an access application under the Convention, the Department’s Office of Children's Issues provides assistance in understanding the application requirements and submitting the application to the Foreign Central Authority in the country where the child resides. If filing a access application under the Convention is not an option, or the U.S. parent chooses to pursue legal remedies directly through the foreign courts, we provide basic information about the local legal system and local social services, lists of local attorneys and basic tips on how to retain a local attorney. To help parents who are unable to visit with their children, consular officers abroad stand ready to arrange welfare and whereabouts checks to verify a child’s health and current circumstances, and then report back on the visit to the concerned parent. If the parent with physical custody of the child refuses permission for a consular visit with the child, U.S. consular officers request assistance from foreign authorities to facilitate the visit or, when a consular visit is still not possible, obtain a report from local social services on the child’s welfare. If communication between child and parent has been disrupted, we work with the parent to identify alternative means to re-establish contact. The Department and consular officers abroad can also provide information about non-governmental organizations and other agencies that provide mediation services or otherwise assist in negotiating regular communication and access to the child. We are also involved at many levels in working with foreign governments to encourage them to consider creative ways to facilitate access for parents in the U.S. The Convention’s Legal Context The Convention states in Article 1(b) that among the Convention’s objectives is “to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.” Article 7(f) tasks Central Authorities to “take all appropriate measures . . . in a proper case, to make arrangements for organizing or securing the effective exercise of rights of access.” Article 5 provides that “ ‘rights of custody’ shall include rights relating to the care of the person of the child, and, in particular, the right to determine the child’s place of residence, while “‘rights of access’ shall include the right to take a child for a limited period of time to a place other than the child’s habitual residence.” The principal purpose and effect of the Convention is to secure the prompt return of children wrongfully removed to or retained in any Contracting State to their country of habitual residence. Under the Convention, to be wrongful and require return of the child, the removal or retention must have been in violation of “rights of custody”. A return application under the Convention cannot be based on a removal that deprives the left-behind parent of “rights of access” only. The Convention does not require the administrative and judicial authorities of a State party to recognize orders concerning custody and access rights from other States. Rather, it generally requires the authorities adjudicating a return application to refrain from making decisions about custody rights if a child has been wrongfully removed or retained so that decisions about custody of the child may be made in the Convention partner country in which the child is habitually resident. While the Convention details standards and time frames that administrative and judicial authorities must use in deciding whether a child is to be returned, the Convention is vague about how signatories should address access requests. Article 21 provides that applications for access may be presented to Central Authorities in the same manner as return applications, but does not require that any specific actions be taken. Central Authorities commit themselves “to promote the peaceful enjoyment of access rights and the fulfillment of any conditions to which the exercise of those rights may be subject.” Central Authorities are also obligated to “take steps to remove, as far as possible, all obstacles to the exercise of such rights.” They “may” initiate or assist in instituting proceedings “with a view to organizing or protecting [access] rights and securing respect for the conditions to which the exercise of these rights may be subject.” Emerging Patterns of Barriers to Access Abroad In our contacts with parents, we and our embassies and consulates in Convention partner countries have noted certain common barriers that parents in the U.S. may face when seeking to exercise rights of custody and access to children residing in Convention partner countries. The following information is an overview, based on observations and the experience of U.S. consular officials working with U.S. parents and foreign government officials on specific cases and broader issues. Whether or not parents in the U.S. choose to request formal assistance through the filing of a access application under the Convention, the Department and our embassies and consulates are actively engaged in assisting parents to establish and maintain meaningful relationships with their children abroad.
I. U.S. Court Orders Not Automatically Recognized or Enforced in Other Countries
Not all Convention partner countries will recognize or enforce U.S. orders related to custody or access rights and the Convention does not require them to do so. Each country’s domestic law determines the appropriate procedures and standards for recognition and enforcement of foreign court orders. By recognition we mean treating a U.S. court order as having the same legal force in the foreign country that an order issued by a court in that foreign country would have. By enforcement, we mean taking actions to compel individuals to comply with the order, including, if necessary, the imposition of sanctions (e.g., fines, arrest, removal of the child, contempt of court) for failure to do so. Enforcement of a U.S. court order in a foreign country is usually only possible when that U.S. order is first recognized in the foreign country. Recognition of a U.S. court’s custody order granting rights of custody or access may require registering the U.S. order with a local court or government agency, or obtaining a domestic court order that mirrors the provisions of the U.S. order. In some countries, a foreign court order must be registered with a central government office in order to be recognized by domestic authorities. In some others, mirror orders (local orders that reflect or “mirror” the content of the original U.S. court order) are used. In most countries, however, an individual who seeks local legal recognition and enforcement of custody and/or access ordered in a foreign country must do so through the local court system. This often requires hiring an attorney in the country where the child is residing. Both parents and/or their attorney may need to appear in person at local court hearings. The majority of U.S. Convention partners have mechanisms for recognizing U.S. court orders related to rights of custody or access. Countries such as Bosnia & Herzegovina, Ecuador, Iceland, and Spain provide a process for recognizing orders issued in Convention partner countries. Portugal also has a process to permit recognition of orders from the U.S. but does not provide them the expedited recognition it gives to European orders. In Mexico, judges take into consideration U.S. court orders when acting on access issues, but are not bound by them; they make an independent decision based on the information before them. Colombian and Italian authorities can recognize U.S. orders, but only if they do not conflict with an existing local court order. Venezuela processes recognition requests through a formal and cumbersome letters rogatory procedure. Other Convention partner countries, however, such as Cyprus, Finland, Germany, Ireland, Serbia and Montenegro, St. Kitts/Nevis, Sweden, and Turkey, do not recognize U.S. custody or access orders, requiring a parent to petition in the local courts. One of the Department’s access cases involving Sweden illustrates the difficulties that can arise when countries do not recognize U.S. orders involving rights of custody or access. In this case, involving a U.S. citizen father and a Swedish citizen mother, a U.S. custody order provided that the parents would have joint custody, which they would exercise on a two-year rotating basis. The order incorporated the parents’ agreement that the U.S. would remain the child’s habitual residence and that the U.S. court issuing the order would maintain continuing and exclusive jurisdiction to resolve all future custody issues. Before the child had stayed in Sweden for two years under the order, the Swedish parent filed for sole custody in a Swedish court and refused to return the child to the U.S. at the end of the two years provided by the U.S. custody order. Sweden does not recognize U.S. custody orders. The left-behind parent filed an application under the Convention for the child’s return to the U.S. The Swedish Supreme Administrative Court, after lower courts had repeatedly found in favor of the U.S. parent’s application, denied the child’s return, finding that Sweden had become the child’s place of habitual residence during the child’s stay with her mother in Sweden. After extended litigation, the U.S. citizen father obtained an order from the Swedish courts granting him joint custody and rights to unsupervised access to his child. Enforcement of the order remains a problem, however, as the Swedish mother has refused to allow the effective exercise of these rights by the father. In such cases, U.S. parents can contact the Department in order to request foreign central authority assistance, a welfare and whereabouts visit by a consular officer, or in order to explore other alternatives, like mediation, to improve access.
II. Problems Enforcing Local Court Orders for Custody and Access
Enforcement measures designed to protect custody and access rights may include fines, arrest, removing the child, and administrative or contempt of court sanctions aimed at compelling compliance with court orders. In a number of countries, however, local law enforcement or other official bodies do not have the legal authority, resources, or will even to enforce local custody or access orders. U.S. Embassies in Bosnia & Herzegovina, Ecuador, Serbia and Montenegro, Turkey, and Venezuela, for example, report that the laws of those countries do not permit the imposition of any sanctions for violations of order related to custody and/or access rights. In Mexico sanctions are minor and rarely enforced in practice. In other Convention partner countries, U.S. parents face varying obstacles to effective exercise of custody or access rights granted by local courts. Sometimes, parents must file separate actions to obtain enforcement of a court’s order. In St. Kitts/Nevis, a U.S. parent who is prevented from exercising rights of custody or access granted under a local court order must lodge a complaint with the court to seek remedies. Similarly, in Slovakia, a separate request for enforcement must be lodged with a court in order to obtain local authority enforcement assistance if a custody order has been violated. Even in countries that permit the imposition of sanctions against violators of custody or access orders, if the order is not specific about times, dates and lengths of visits, for example, it may also be difficult to prove that the other parent has violated the order’s terms. In some countries, such as Colombia, Ecuador, Germany, Spain, Sweden, and Switzerland, the authority to arrest a parent violating a court order or to physically remove a child from the violator’s care is rarely used and mechanisms like contempt of court do not exist or are not used in cases involving custody or access disputes. In these countries enforcement is often problematic. A court ordering access rarely has direct control or influence over the police and child welfare institutions assigned the task of implementing an order. In Switzerland, local jurisdictions (cantons) operate independently, so, orders issued in one jurisdiction may not be recognized or enforceable in a different jurisdiction of the country, thus allowing a custodial parent to move the child to a different canton to prevent visits or the enforcement of a local access order. Local courts and law enforcement in these countries may also be reluctant to impose and carry out jail sentences or significant financial sanctions against parents with custody who refuse to permit the other parent to exercise court-ordered access rights. Strong cultural aversion against using coercive measures to remove a child from a parent sometimes motivates refusal by authorities to enforce access orders or the impose sanctions on the violating custodial parent. In such cases, officials often claim reliance on a “best interests of the child” standard and refuse to take action because of the possible negative effect enforcement could have on the child involved. Such justifications for non-enforcement even occur in countries like the United Kingdom, which the U.S. Central Authority considers a model Convention partner. One U.S. parent recently reported that in the two years since a U.K. court granted her access, the child’s father has persistently ensured that the child was not available to her; local authorities have reportedly cited the possible emotional trauma to the child as the reason for not enforcing the access order or punishing the violating parent. III. No General Standards for Custody/Access There are no internationally recognized standards or guidelines governing the type and frequency of access that a parent without sole custody to a child should enjoy. Courts will usually evaluate information presented by both parents and may interview the child before rendering a decision regarding custody or the frequency, duration, location, and extent of access. For example, although requesting parents in the United States may seek an order permitting the child to visit the U.S., a court considering the request may instead order more restricted access by, for example, permitting only written correspondence, telephone contact, supervised visitation, or periodic visits with the child conducted in the child’s current country of residence. Some countries have demonstrated considerable creativity and flexibility in solving problems of international access through the involvement of non-governmental organizations, mediation services, and new technologies, such as video conferencing and other video and computer-based communications, to facilitate contact between parent and child. Parents living in the U.S. may face particular difficulties obtaining joint custody in Ireland, Kosovo , Macedonia, Portugal, or Zimbabwe. Joint custody is not possible at all in Romania after the parents have divorced. Courts in some countries grant joint custody to parents living in the U.S. but arranging for U.S. visitation may be difficult or impossible. Courts may suspect that children permitted to leave their jurisdiction will fail to return, even if promises to return the child after a visit to the United States are agreed to in writing. In some cases in Panama, Sweden, and Venezuela, for example, foreign parents have had little difficulty in convincing local authorities to block a child’s travel to the United States to visit with the other parent. Over a dozen of our Convention partner countries have non-governmental organizations that have some programs to work with and assist parents and children. Most partner countries make governmental or private mediation assistance available to parents. We are not aware of government mediation assistance or non-governmental organization support for parents willing to negotiate access in Romania, Spain, or Turkey.
IV. Child’s Interests vs. Parent’s Interests
Most courts, in determining what custody and access rights a parent will have with respect to a child, will consider the best interests of the child and whether the child desires the contact with the requesting parent. In general, the child’s views are given progressively greater weight as the child matures. In instances where the child is sufficiently mature to state a preference, courts may question the child directly or rely on social service professionals and/or psychological evaluations to determine the level of access that best fits the needs of the child. In cases where conflicts between parents remain intense, courts often consider the child’s ability to cope with the conflict when determining appropriate access. In many countries, such as in Germany, judges use court hearings as opportunities to observe parents as part of their evaluation before rendering a custody or access decision. A parent’s appearance at court hearings may therefore be very important to the court’s assessment of a parent’s access application, so that an applying parent’s failure to appear may affect his or her interests negatively. The foreign attorney representing a parent should provide guidance on whether the parent’s personal appearance is essential or if other means of testimony, such as telephone or video testimony, might be an acceptable and available alternative. In its effort to determine what is in the best interests of the child, a foreign court considering a petition for custody or access by a parent in the United States may lose sight of the need to protect the child’s interest in a relationship with the applying parent. Recent decisions by the European Court of Human Rights have affirmed the right that parents and children have to a relationship with each other and have made clear that governments (including courts) have an obligation to respect and protect those rights.
V. Cultural or Linguistic Estrangement From the Child
International custody and access rights cases often involve parents residing in countries with differing cultures. Non-custodial parents may find visiting and communicating with the child increasingly problematic the longer the child remains in a foreign country. Language barriers frequently develop as the child becomes settled in a non-English speaking environment. Some parents exploit this linguistic estrangement to reinforce their argument to courts that the child and the U.S. parent do not relate well to each other and thus the court should not expand access. Parents who face such language barriers may need to seek outside assistance to facilitate continued meaningful communication with the child. Consular officers, local social welfare agencies or non-governmental organizations may be able to assist or identify individuals or agencies that can help. U.S. consular officers conducting welfare visits can also verify the child’s language skills and, through explaining the purpose of their visits, reaffirm that the child remains aware of his/her U.S. citizenship and ties to the United States.
VI. Biases Based on Nationality, Sex, or Marital status
Embassies in 15 of our Convention partner countries report that noticeable gender or nationality biases affect decisions on custody and access rights. In a number of countries, courts appear to favor mothers when deciding custody and access matters, particularly when young children are involved. Countries that tend to favor mothers include Argentina, Ecuador, Greece, Iceland, Mexico, Portugal, Romania, Spain, St. Kitts/Nevis, Sweden, Venezuela, and Zimbabwe. Courts in Belgium have traditionally favored mothers but attitudes have started to change in recent years. Colombian and Swiss courts hearing custody cases tend to favor their own nationals. Fathers who have never married the mother of their child may also find that they are denied custody or access rights. In Finland, the mother controls custody of a child born out of wedlock unless and until the parents marry. In Belgium, Germany, Greece, Sweden, Switzerland, and Zimbabwe, an unwed father’s rights to custody or access depend on the mother’s consent.
VII. Failure to Locate Children
Just as locating children is a serious barrier in some return cases under the Convention, locating children is a frequent problem for parents in the U.S. seeking to exercise custody or access rights abroad. Foreign parents who choose to interfere with a child’s contact with a parent in the U.S. are aided, in some countries, by policies and local authorities that place a low priority on locating children who are the subject of custody disputes. In dealing with children taken to Mexico, for example, where authorities have a poor record of locating abducted children, some U.S. parents have waited for years for Mexican authorities to locate their children. In one long-outstanding case, the U.S. parent spent several years pursuing the children’s return through the Hague Convention process. In 1999, in the face of repeated court delays and with no idea of how much longer the case would continue, the parent finally abandoned pursuit of the children’s return and decided to focus on access instead. U.S. consular officials were able to work through the taking parent’s attorney to arrange several visits to check on the children’s welfare. In a 2003 telephone conversation with the U.S. parent, one of the children confirmed where they lived. This information was shared with the Mexican authorities who, however, report they are still unable to locate the children. No progress has been made on the access request. The U.S. parent has been separated from the children for more than ten years. Addressing Access and Enforcement Issues with our Hague Convention Partners It is clear that the absence of shared norms concerning the substance of custody and access rights and the lack, in many countries, of reliable mechanisms to ensure the effective exercise of those rights represent serious obstacles to parents in the U.S. seeking meaningful access to their children abroad. On several levels the Department works with our Convention partners to raise consciousness of custody and access issues, to seek consensus on how to address them, and to enhance the ability of parents in the U.S. to establish and maintain meaningful access with their children. On a caseworker level, we seek Central Authority assistance for U.S. parents to negotiate the legal system in the foreign country where they seek custody or access rights. Foreign Central Authorities often work with us informally, even where they perceive no treaty obligation, to help U.S. parents address their access concerns. They do this because we spend years developing close working relationships of mutual cooperation and support. Their cooperation is reinforced by policy level engagement in which senior Department of State officials including the Secretary, Undersecretaries, and Assistant Secretaries provide a political context for taking access issues seriously. These policy officials raise individual cases where necessary as well as highlight the importance of finding systematic solutions to access problems—problems that can cause ongoing irritations in bilateral relations. Our Embassies abroad engage foreign government officials even more frequently at all levels, seeking creative solutions to help American parents achieve meaningful custody or access rights. They provide the front-line effort in these cases and in some countries face daunting barriers to success. Illustrative of our engagement with our Convention partners are the frequent opportunities Assistant Secretary Harty takes to raise abduction and custody and access issues in her meetings here and abroad with foreign officials. She personally advocated for left-behind parents in individual long-standing custody and access cases with Swedish, Austrian, German, Italian, Turkish, Brazilian, Costa Rican, Polish, and Mexican counterparts during the period of this report. In addition, Assistant Secretary Harty led the U.S. Government’s efforts to address parental access rights issues involving children in countries not party to the Hague Abduction Convention. Both in Washington and in several trips to the Middle East over the past year, she has met with her counterparts and other senior officials to underline the Department’s support for improved access for U.S. parents. Her efforts on behalf of American citizens seeking access rights to their children in Saudi Arabia, Egypt, Lebanon, Jordan, Morocco, the United Arab Emirates and Syria are opening doors previously closed to us and promise to provide a model for other Convention countries seeking access in these countries for their citizens. Her work is helping to frame the discussion on what access should include and how we can go about achieving it. Ambassador Harty negotiated a U.S.-Egypt Memorandum of Understanding setting forth guidelines for possible future arrangements on cooperation in consular cases concerning parental access to children, signed in Cairo in October 2003, that has been greeted with intense interest by our Convention partners. A similar Memorandum of Understanding has been negotiated with Lebanon and sample texts for similar arrangements have been shared with Jordanian, Syrian, Moroccan, and Emirati officials. |
